Citizens consulting lawyer about appeal options

BILL BRADLEY

The struggle to save a local wetland area off Paris St. continues.

John Rutherford, spokesperson for Citizens for the Preservation of the Nephawin/Lily Creek Wetlands, vows to fight against two developments off Centennial Dr. despite suffering a recent appeal defeat, rezoning application setbacks last summer, and a further possible adverse court decision next Tuesday.

In early January, a ruling by the Ontario Superior Court squashed any chances the group had to appeal a  school construction project just south of Centennial Dr. by the Le Conseil Scolaire de District Catholique du Nouvel-Ontario.

Superior Court Justice Louise Gauthier ruled that there are insufficient legal grounds for a judicial appeal.

Rutherford said  Wednesday his group had no comment about the Superior Court decision as they were still consulting with their legal adviser, but was not ruling out any further action to protect the wetland area, across from the James Jerome Sports Complex, from development.

The group appeared before the Ontario Municipal Board (OMB), a quasi provincial body that regulates land-use conflicts last summer, claiming the City of Greater Sudbury had improperly given approval for the school, a replacement for the aging St. Denis school nearby. In August the OMB ruled that the city had acted with due diligence.

The citizens group appealed to a higher court, the Superior Court, in order to be granted a hearing to continue their fight.

They claimed the OMB committed errors of law. For example, they argued in a written submission that the OMB failed to recognize the authority of the Ontario Planning Act over regulations issued by another regime, the Conservation Authorities Act, guiding the activities of the Nickel District Conservation Authority, and applied the wrong legal test for conflicts between the legal regimes. They argued that the OMB misinterpreted the provisions of provincial policy on prohibiting development in a floodway. Dr. Edgar Watt, an expert witness for the group stated that the entire site lay within a floodway therefore even the parking lot, playground and driveway were inadmissible.

But according to a planning expert for the proponent, the parking lot, playground and driveway, if properly designed, would not affect flood flows.

The lawyer for the citizens’ group argued that allowing development in a flood plain was decision-making from a bygone era and that the new planning approach as exemplified by the Provincial Planning Statement, PPS, was to keep development away from possible sites where flooding was a risk, even if it might happen only every 100 years.

But, the PPS does allow development and site alteration within a floodway if precautions are taken, said the Superior Court judgement. Therefore the OMB’s interpretation of provincial policy was valid, wrote Justice Gauthier.

This recent decision has not only prevented further appeals at this level but has given local developer Ed Masotti hope that the next appeal to the Superior Court by the citizens against his $12 million medical office project adjacent to the school, will also be terminated on Jan. 22.